Squat thrust

The Housing Minister recently described as "bizarre" and a "Squatter's Road-Map" a controversial Tribunal ruling that ordered a local authority to disclose information on empty properties in the borough. Matthew Flinn analyses the judgment.

In Voyias v Information Commissioner and the London Borough of Camden EA/2011/0007 the First Tier Tribunal overturned a decision of the Information Commissioner and ordered Camden Council to provide information about empty properties in the borough to a former member of the Advisory Service for Squatters.

When one thinks of the term “human rights”, the first example that springs to mind is likely to be the right to life, or the right not to be tortured or enslaved – fundamental guarantees that protect the basic dignity of our human condition. Yet human rights are also intended to serve the core goal of preserving and enhancing the strength and rigour of democratic and pluralistic societies, and so the European Convention of Human Rights (EHCR) also contains provisions guarding against discrimination, and protecting freedom of religion and expression.

There is no explicit right of access to information in the ECHR, and both the European Court of Human Rights and domestic courts have been clear that, as yet, such a right is not within the interpretive scope of the right to freedom of expression set out in Article 10 (see paragraph 36 of the decision in R v Bow County Court, ex p Pelling [2001] 1 UKHRR 165).

Yet arguably such a right is an important precursor to the effective and meaningful expression which Convention jurisprudence prizes most highly, and indeed as far back as 1946 the General Assembly of the United Nations passed a resolution in which it held that “Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated”. Enter section 1 of the Freedom of Information Act 2000 (FOIA), which created a general right of access to information in England and Wales some 50 years later.

Whilst the large number of exemptions to the basic duty to disclose listed in Part II of the Act has led some commentators to lament the death of the right by a thousand cuts, it was nonetheless successfully relied upon by Mr Yiannis Voyias in this case.

In August 2009 Mr Voyias wrote to Camden Council asking for: "..the address of every void [i.e. empty] property in the LB Camden, in which a non individual is listed as either being the owner or as having a material interest in the property".

This request was initially refused by the Council, which relied upon the exemption set out in section 43(2) of the FOIA, providing that information need not be released when its disclosure would, or would be likely to, prejudice the commercial interests of any person. This was an error, however, since Mr Voyias sought information relating to residential rather than commercial properties. Therefore when Mr Voyias challenged the Council’s decision before the Information Commissioner, the Council changed its position and relied upon section 31(1)(a), which provides for the withholding of information on the basis that its disclosure would, or would be likely to, prejudice the prevention or detection of crime – in this context, that meant crimes that might be linked to squatting, such as damage to property and drug use.

In a decision handed down in December 2010, the Information Commissioner agreed that section 31(1)(a) was engaged and therefore the information was exempt from the general duty to disclose. However, as this was a qualified exemption, he then had to consider whether the public interest in disclosure outweighed the interest in maintaining the exemption and withholding the information. He found that it did not, and that the Council had not been in breach of section 1 of the FOIA.

Mr Voyias then appealed to the First Tier Tribunal, which under section 58 of the FOIA effectively takes place as a complete re-hearing of the matter. By that time the Council had released further statistical information about the number of void properties broken down by ward. However, it refused to provide Council records of the addresses of empty Council-managed properties, and records of properties owned by non-individuals which had been confirmed as empty by the Council. That information remained in dispute, and was the subject of the Tribunal’s consideration.

Having addressed a number of preliminary points about the scope and meaning of the request, the Tribunal then asked itself the questions which the Information Commissioner had determined: whether the release of the information would, or would be likely to, prejudice the prevention/detection of crime thus engaging section 31(1)(a), and if so, whether the public interest in disclosure outweighed the interest in withholding the information.

Link between squatting and crime

The first issue involved an assessment of the link between squatting and crime. This is the most interesting part of the judgment, in which the court made reference to a number of official reports on e.g. “crack houses”, Tribunal findings in other similar cases, and witness evidence of the police, council workers and Mr Voyias himself. In doing so, the Tribunal noted that squatting in itself is currently perfectly legal under English law, and probed what might be considered the intuitive feeling that there is something wrong with it.

The Tribunal accepted that the release of the information would facilitate squatting insofar as it would be likely to increase the number of properties inhabited by squatters (although perhaps not impacting on the overall number of squatters themselves). However, this was not enough to engage section 31(1)(a), since, as noted, squatting is legal. It therefore needed to examine other forms of illegal activity could be linked to this legal act.

The contention that the release of the information would lead to an increase in serious crime such as arson, vandalism, violence and drug use was rejected. This was based upon a distinction which the Tribunal adopted between “opportunistic” squatting and “organized” squatting. It was argued by Mr Voyias that opportunistic squatters were likely to have substance abuse problems and would not have the “energy, patience, resources or soundness of mind to use the list”. The Tribunal accepted on the basis of the evidence it had seen that serious crimes such as vandalism, arson and drug use were attendant upon opportunistic squatters, and that such squatters would not be likely to make use of the released information, due to their “chaotic behaviour and impulsivity”.

However, it did accept that the release of the information would be likely to lead to an increase in the incidence of criminal damage, as organized squatters sought access to properties and then sought to secure them by e.g. breaking and changing locks. It also accepted that disclosure was likely to facilitate the acquisitive crimes involved in “stripping”, in which empty properties were targeted by organized groups seeking materials to strip and sell. On these bases it accepted that the release of the information would be likely to prejudice the prevention or detection of crime, and therefore section 31(1)(a) of the FOIA was engaged.

The Tribunal's findings as to the type of crimes which could properly be linked to the legal act of squatting in the circumstances of the case was crucial to the next stage of its inquiry: whether the public interest in disclosure outweighed the interest in withholding the information. Whilst the Tribunal acknowledged that any crimes associated with squatting could undermine the neighbours’ sense of security, and that such crimes would incur costs in their prevention and detection, it determined that the nature of these crimes (i.e. criminal damage and stripping crimes) were at the “lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime”.

Bringing empty properties back into use

In favour of disclosure, the Tribunal accepted that the release of the information would bring a proportion of empty properties back in to use quicker than would otherwise be the case. In addition it considered that the release of the information would rejuvenate and bring focus to the debate on the presence of empty properties in the community:

"The Tribunal is satisfied that there is already a lively and informed debate in this area, but, recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo. Although the Tribunal recognizes the various reasons why a property may be vacant including bereavement, the Tribunal is satisfied on the balance of probabilities that this remains a very strong public interest factor in favour of disclosure."

Taking all these factors into account, the Tribunal concluded that the public interest favoured disclosure of the information. The Information Commissioner was therefore wrong when he decided that there had been no breach of section 1 of the FOIA.

Information rights successfully relied upon

In summary, this is an interesting example of a case where information rights were successfully relied upon to source information, notwithstanding the negative societal consequences liable to flow from the release of the information. Particularly striking was the Tribunal’s reasoning which suggests, perhaps somewhat surprisingly, that the actions of squatters – at least those of the organized variety – can have a constructive role to play in achieving desirable social ends.

In the view of the Housing Minister Grant Shapps, the decision effectively forced the Council to release a “Squatters’ Road-map”. In a statement criticising the judgment, he went on to say: "…I also want to shut the door on so-called “squatter’s rights” once and for all, and end the misery, expense and hassle that far too many people have had to endure for too long, which is why we are consulting on making squatting a criminal offence."

The Tribunal’s decision was a function of the information rights afforded to every citizen by the FOIA. It is thus not clear what specific “squatters’ rights” the Minister was referring to. In any event, it should be noted that no special rights for squatters are created by the Human Rights Act 1998. There is no right to acquire a home provided in the Convention, and whilst the concept of the “home” under Article 8 (which protects the right to respect for the home) is a factual matter which does not depend on questions of legal title (see paragraphs 8 – 10 of Qazi v London Borough of Harrow [2004] 1 AC 983), the courts have been clear that Article 8 is extremely unlikely to avail a squatter in the face of eviction proceedings brought by or on behalf of those with title to the property (see Kay v Lambeth London Borough Council [2006] 2 AC 465).

Ultimately, the benefits squatters enjoy, and much of the reasoning in this case, is based upon the basic common law principle that it is legal to do something that is not proscribed by law, although as indicated in the Minister’s statement, that principle may not avail to squatters for much longer.

Matthew Flinn is a barrister at 1 Crown Office Row. This article first appeared on the chamber’s Human Rights Blog.